Divine Purposiveness and its Implications in Legal Theory: The Interplay of Kalām and Uṣūl al-Fiqh

in Islamic Law and Society
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While jurisprudents agree that the Sharīʿa serves to benefit human beings because God is wise and merciful, they disagree as to the nature of the correlation between God’s rulings and these benefits. Does God legislate with the purpose of benefitting consumers of the law? In this essay I investigate the Ashʿarī doctrine on whether God can be said to act purposively and how this doctrine influences legal theory (uṣūl al-fiqh). I will examine Sayf al-Dīn al-Āmidī’s position on this issue in his theological writings and his work on legal theory. By focusing on one particular aspect of legal theory, I will demonstrate how the issue of purposiveness in God’s acts substantively impacts methodologies for the derivation of legal rules. I will then highlight the mechanisms al-Āmidī develops as a means of constructing a theory that maintains consistency and integrity, and compare his view to that of Fakhr al-Dīn al-Rāzī’s (d. 606/1209).


Divine Purposiveness and its Implications in Legal Theory: The Interplay of Kalām and Uṣūl al-Fiqh

in Islamic Law and Society

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References

2

 G. Makdisi“Ashʿarī and the Ashʿarites in Islamic Religious History I,” Studia Islamica 17 (1962) 46–7.

3

 G. Makdisi“The Juridical Theology of Shâfiʿî,” Studia Islamica 59 (1984) passim.

10

 Anṣārīal-Ghunya2:1029; ʿAbd al-Karīm al-Shahrastānī Nihāyat al-aqdām fī ʿilm al-kalām ed. Alfred Guillaume (Cairo: Maktabat al-Thaqāfa al-Dīniyya 1430/2009) 390.

11

 Bernard WeissThe Search for God’s Law (Salt Lake City: University of Utah2010) 34.

12

 Bernard WeissThe Search for God’s Law (Salt Lake City: University of Utah2010) 49.

17

 Kara Richardson“Causation in Arabic and Islamic Thought”The Stanford Encyclopedia of Philosophyed. Edward N. Zalta (2015). .

18

 Robert WisnovskyAvicenna’s Metaphysics in Context (Ithaca: Cornell University Press2003) 186.

30

 ZarkashīBaḥr5:122–4; Qur’ān 17:1.

31

 AnṣārīGhunya2:129–31.

32

 ĀmidīIḥkām3:358.

33

 Ayman ShihadehThe Teleological Ethics of Fakhr al-Dīn al-Rāzī (Leiden: EJ Brill2006) 99. Sophia Vasalou offers an excellent analysis of al-Rāzī’s criticism of the contradiction in Ashʿarī doctrine. Sophia Vasalou Ibn Taymiyya’s Theological Ethics (New York: Oxford University Press 2016) 163–4.

34

 ZarkashīBaḥr5:122.

35

 Al-Shāfiʿīal-Āmidī86.

37

 Al-Shāfiʿīal-Āmidī91. Al-Āmidī himself informs the reader that the Ghāya is an abridgment of the Abkār (Sayf al-Dīn al-Āmidī Ghāyat al-marām fī ʿilm al-kalām ed. Ḥasan Maḥmūd ʿAbd al-Laṭīf [Cairo: al-Majlis al-Aʿlā li’l-Shuʾūn al-Islāmiyya 1391/1971] 5). This is also evident from the similar wording and repeated arguments in the sections from the Abkār and the Ghāya under study in this essay. For similar notes see the editor’s introduction to the Ghāya (ibid. editor’s introduction 14). Al-Āmidī reportedly wrote another abridgment of the Abkār entitled Manāʾiḥ al-qarāʾiḥ.

38

 Al-Shāfiʿīal-Āmidī97.

40

 Al-Shāfiʿīal-Āmidī61.

41

 Al-Shāfiʿīal-Āmidī61. For instance compare al-Āmidī’s discussion on ethical value (al-taḥsīn wa’l-taqbīḥ) in the Abkār and Iḥkām (Āmidī Abkār 2:117–44; idem Iḥkām 2:112–21).

42

 al-Shāfiʿīal-Āmidī61. The Muntahā removes most of the dialectics and argumentation of the Iḥkām and limits itself to the conclusions. It seems that the Muntahā like the Iḥkām was written before the Ghāya and therefore it likely shares the theological doctrines of the Abkār. There is no noticeable change between the Iḥkām and Muntahā at least on the topics investigated in this essay. For this reason no further references will be made to it.

43

 ĀmidīIḥkām3:358.

44

 ĀmidīAbkār2:151.

46

 ĀmidīAbkār2:151. The obligation for God to act in the interest of His creation is important for Muʿtazilīs like al-Qāḍī ʿAbd al-Jabbār who held that “uselessness [ʿabath] is a ground of evil.” Oliver Leaman “‘Abd al-Jabbar and the Concept of Uselessness” Journal of the History of Ideas 41:1 (1980) 129–31 esp. 129.

54

 ĀmidīAbkār2:153–5.

57

 ĀmidīAbkār2:155.

58

 ĀmidīAbkār2:155.

59

 ĀmidīAbkār2:158.

60

 ĀmidīAbkār2:155.

61

 ĀmidīAbkār2:158. O4–5 and R4–5 also deal with eternal damnation. See ibid. 2:155–6 2:158–9.

62

 ĀmidīAbkār2:158.

63

 ĀmidīAbkār2:156.

64

 ĀmidīAbkār2:157.

65

 ĀmidīAbkār2:157.

67

 ĀmidīAbkār2:161.

68

 ĀmidīAbkār2:162. Similarly al-Qarāfī writes that the world exhibits more harm (fasād) than benefit (maṣlaḥa); however on the basis of inductive reasoning (istiqrāʾ) we know that the revealed laws (al-sharāʾiʿ) are for the benefit of human beings. Qarāfī Nafāʾis 7:3312.

69

 ĀmidīAbkār2:155.

70

 ĀmidīAbkār2:157. Al-Rāzī offers a similar argument in which he rejects the Muʿtazilī claim that God is obligated to act in certain ways (Rāzī Nihāya 3:292f). Al-Qarāfī does the same regarding the question of God’s wisdom. He rejects the Muʿtazilī understanding of wisdom which is conditional on acting with the purpose of procuring benefits (maṣāliḥ). This condition he writes agrees with a conventional understanding of wisdom and is therefore inapplicable to God. Instead he argues that for God to be wise means that He is described with perfection (kamāl) complete knowledge (al-ʿilm al-shāmil) and the seven attributes derived from entitative determinants (e.g. Power Will Knowledge) (al-ṣifāt al-sabʿa al-maʿnawiyya) (Qarāfī Nafāʾis 7: 3308). Elsewhere al-Qarāfī criticizes al-Rāzī’s definition of wisdom on the grounds that it is influenced by the Muʿtazilī theory of ethical value. Al-Qarāfī continues: “We agree with the Muʿtazilīs on attributing wisdom to God but we disagree over its interpretation. They interpret “wisdom” as ‘the obligatory pursuit of benefit (murāʿāt al-maṣāliḥ wujūban)’” (ibid. 9:3995). For a discussion of al-Āmidī‘s argument that it is invalid to analogize between the mundane and supernal see Weiss The Search for God’s Law 53–6.

75

 ĀmidīAbkār5:40–52.

76

 ĀmidīGhāya13. In the Abkār when listing the main doctrines of the Muʿtazilīs the author mentions that they held that it is obligatory (yajib) for God to pursue rationales (ḥikma) in His actions. This reference to the position of the Muʿtazilīs on divine purposiveness is useful because it tells us the extent to which this doctrine betrays a commitment to a theological school and how important it was. It seems therefore that this doctrine was regarded as characteristic of the Muʿtazilī school. Āmidī Abkār 5:41.

78

 ĀmidīIḥkām3:329.

79

 ĀmidīIḥkām3:339.

80

 ĀmidīIḥkām3:357.

81

 ĀmidīIḥkām3:312.

85

 ĀmidīIḥkām3:359.

87

 ĀmidīIḥkām3:361.

88

 ĀmidīIḥkām3:361. This argument is repeated in the thirteenth objection. Ibid. 3:363.

89

 ĀmidīIḥkām3:365.

91

 ĀmidīAbkār3:361.

92

 ĀmidīAbkār3:365.

93

 ĀmidīAbkār3:361.

94

 ĀmidīAbkār3:366.

95

 ĀmidīAbkār3:362.

96

 ĀmidīAbkār3:366.

97

 ĀmidīAbkār3:362.

99

 ĀmidīAbkār3:314 366.

100

 ĀmidīIḥkām3:366. Al-Rāzī argues for the lack of purposiveness in legal rulings because they are God’s speech (khiṭāb) which is pre-eternal and pre-eternal speech cannot be purposive (Rāzī Maḥṣūl 5:127). Commenting on this al-Qarāfī writes that pre-eternal speech must relate to a demand (iqtiḍāʾ) and a decision (takhyīr) or else it would not be a ruling. A legal ruling is composed of both pre-eternal speech and this relatum where the latter lacks an ontological existence (ʿadamī). Thus a ruling is a type of relationship (nisba) between pre-eternal speech and human actions. Such a relationship has no ontological existence for which reason the ruling has no ontological existence because things composed of phenomena that are both ontologically existent (i.e. speech) and non-existent (i.e. the relatum of speech) are themselves ontologically non-existent. Because a ruling is ontologically non-existent it can be established by something else namely a purpose. Qarāfī Nafāʾis 7: 3217–8.

101

 ĀmidīIḥkām3:363.

102

 ĀmidīIḥkām3:367.

106

 Aaron ZysowThe Economy of Certainty (Atlanta: Lockwood Press2013) 222–36. Felicitas Opwis writes that the sign model was used by those who held that the purpose of the law is inaccessible to human reason while the motive model was used by those who held that the purposes are intelligible (Felicitas Opwis Maṣlaḥa and the Purpose of the Law: Islamic Discourse on Legal Change from the 4th/10th to 8th/14th Century [Leiden: EJ Brill 2010] 33f). Pace Opwis al-Rāzī who was a firm proponent of the sign model also held that the objectives of the law are intelligible (although he argued against divine purposiveness). According to Zysow the motive model was linked to the use of relevance (munāsaba see below) in deriving the ratio legis (Zysow The Economy of Certainty 236). But the sign model also allows for the use of relevance as the example of al-Rāzī demonstrates.

107

 ĀmidīIḥkām3:254. Noting the fact that most Ashʿarīs adopted the sign model and most Muʿtazilīs adopted the motive model ʿĀyiḍ al-Shahrānī links the difference between the positions to the debate on ethical value. He also distinguishes between the ratio legis as a muʾaththir (something efficacious) and as a bāʿith (something that prompts) attributing the former understanding of the ratio legis to the Muʿtazilīs and the latter to al-Āmidī. The author cites a number of Ashʿarī legal theorists who rejected the Muʿtazilī understanding of the ratio legis because they considered it to be based on the Muʿtazilī definition of ethical value (ʿĀyiḍ al-Shahrānī al-Taḥsīn wa’l-taqbīḥ al-ʿaqliyyān wa atharahumā fī masāʾil uṣūl al-fiqh maʿ munāqasha ʿilmiyya li-uṣūl al-madrasa al-ʿaqliyya al-ḥadītha 3 vols. [Riyadh: Dār Kunūz Ishbīliyā li’l-Nashr wa’l-Tawzīʿ 1429/2008] 2:271–80).

110

 ĀmidīIḥkām3:255.

115

 ĀmidīIḥkām3:339. Al-Āmidī rejects Abū Zayd al-Dabbūsī’s (d. 430/1038) definition of relevance – defined as that which is agreeable to people of intelligence – because it can be easily contested. A jurist may simply claim that he does not find the ratio legis agreeable to him. This may explain why al-Dabbūsī did not allow for the identification of the ratio legis according to the criterion of relevance (ibid. 3:338f; cf. Zysow The Economy of Certainty 206 note 286).

116

 ĀmidīIḥkām3:339.

117

 ĀmidīIḥkām3:289.

118

 ĀmidīIḥkām3:289.This qualification for the ratio legis is mentioned in response to the objection of an interlocutor who argues that the purpose behind the ruling is the rationale irregardless of the determining feature ( Āmidī Iḥkām 3:2288–9).

120

 ĀmidīIḥkām3:288–90. Al-Āmidī discusses another interesting scenario where the rationale is present but the ruling is not. He argues that this scenario does not occur due to a deficiency in the ratio legis. Rather even if the case could yield a greater rationale the different ruling that applies (or does not apply) is due to different qualities that this case may have. He mentions the law of talion (qiṣāṣ) which is intended as a deterrent. If A cuts off B’s limb B is entitled to equal retaliation. One may object that the same ruling to retaliate by cutting off a limb does not apply in the case of murder despite the greater need to deter murder. Because murder has additional features not shared by injury to a limb it receives a different ruling that is more appropriate (alyaq) to the rationale (murder entitles the family of the victim to seek retaliation through capital punishment against the aggressor).  Āmidī Iḥkām 3:290f.

121

 ĀmidīIḥkām3:300.

123

 ShihadehThe Teleological Ethics of Fakhr al-Dīn al-Rāzī98.

124

 ShihadehThe Teleological Ethics of Fakhr al-Dīn al-Rāzī98.

126

 Opwis“Attributing Causality to God’s Law,” in Islamic Philosophy Science Culture and Religion: Studies in Honor of Dimitri Gutased. David Reisman and Felicitas Opwis (Leiden: EJ Brill2011) 397–418esp. 415; see also idem Maṣlaḥa and the Purpose of the Law 120.

128

 RāzīMaḥṣūl5:179.

131

 RāzīMaḥṣūl5:127.

132

 RāzīMaḥṣūl5:157–8. Al-Rāzī offers another definition of suitability that is held by those who reject the use of rationales as rationes legis. However he prefers the definition that accepts the use of rationales as rationes legis. Opwis Maṣlaḥa and the Purpose of the Law 97f.

133

 RāzīMaḥṣūl5:179.

134

 RāzīMaḥṣūl5:176.

135

 RāzīMaḥṣūl5:287. Felicitas Opwis writes: “Al-Rāzī argues that since the use of a [feature] as a ratio legis may be on account of an underlying reason it is more appropriate that the underlying reason itself serves as the ratio legis for the ruling due to the fact that the characteristic is effective on the ruling only because of the underlying reason that it entails benefit or averts harm. (Opwis Maṣlaḥa and the Purpose of the Law 123).” Al-Āmidī prefers a rationale that serves as the ratio legis but only when it is determinate. Weiss also notes the controversy over the use of a rationale as the ratio legis (Weiss The Search for God’s Law 585). Al-Rāzī is aware of the controversy but argues for the use of an indeterminate rationale as a ratio legis. He recognizes a number of objections and offers lengthy rebuttals in defense of his position. Rāzī Maḥṣūl 5:287–293.

136

 OpwisMaṣlaḥa and the Purpose of the Law107.

137

 Rāzīal-Maḥṣūl5:157.

142

 ĀmidīIḥkām3:301–2. Al-Āmidī also argues that a ruling can have more than one ratio legis for different cases. Ibid. 3:295.

143

 Frederick SchauerThinking Like a Lawyer: A New Introduction to Legal Reasoning (Cambridge, MA: Harvard University Press2009) 35.

144

 See WeissThe Search for God’s Law572. Khaled Abou El Fadl writes that in Islamic law “[S]ophisticated conceptual frameworks were developed to regulate the application of the various jurisprudential tools employed in the process of legal determination. These conceptual frameworks were not only intended to distinguish legitimate and authoritative uses of legal tools but collectively they were designed to bolster accountability predictability and the principle of the rule of law. (Khaled Abou El Fadl “The Islamic Legal Tradition” in The Cambridge Companion to Comparative Law ed. Mauro Brussani and Ugo Mattei [Cambridge: Cambridge University Press 2012] 295–312 esp. 297)”.

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